De facto Relationships and Family Law

Under the Family Law Act 1975 a de facto relationship is one where the couple are not legally married to one another and where they live together on a genuine domestic basis [s 4AA]. Same sex relationships are included in this definition.

A de facto relationship will be recognised even where one of the persons in the relationship is legally married to another or is in another de facto relationship.

What factors does the Court consider in determining if a de facto relationship existed?

the duration of the relationship
the nature and extent of a common residence

• whether a sexual relationship exists
• the degree of financial dependence or interdependence between the couple and any arrangements for financial support between them
• the ownership, acquisition and use of their property
• degree of mutual commitment to a shared life
• whether the relationship is or was registered under a law of a state or territory as a prescribed kind of relationship
• the care and support of children
• public aspects and reputation of the relationship.

Conditions that must be met before an application for property settlement can be made

One of the following conditions must exist:

• the relationship must have existed for a period of at least 2 years (this can include more than one period providing it totals at least 2 years), or
• there is a child of the relationship, or
• one of the partners has made substantial financial or non-financial contributions to their property or as homemaker or parent, and serious injustice would result to that partner if an order was not made (that is, the 2 year requirement can be waived), or
• An application for de facto property settlement must normally be made within 2 years of the end of the relationship [s44 (5) Family Law Act 1975] . An application may be made after this time if the court is satisfied under s44 (6):
• hardship would be caused to the party or a child if leave were not granted, or
• if the application is for maintenance, that, at the end of the standard two year application period, the person is unable to support themselves without an income tested pension, allowance or benefit.

Property disputes and spousal maintenance

In the area of property disputes and spousal maintenance on the breakdown of a relationship, a de facto Family Law Act 1975 , there is no time period for which the relationship must have existed before the agreement can be enforced. relationship must generally have existed for two years or there must be a child of the relationship before the relationship is recognised and a claim for property settlement can be made to the court. (If the former partners have made or make a binding financial agreement under Part VIIIAB.

The rights and responsibilities of de facto partners

If you are in a de facto relationship, your legal rights and responsibilities are similar to those of married couples. For example, if your partner died, you would be entitled to the following:

• a share of the intestate estate under the Succession Act
• receive compensation under workers compensation law (if your partner dies during the course of employment).
• claim financial assistance under the Succession Act
• claim social security under the Commonwealth Social Security Act.

De facto couples with children

Matters relating to the children of de facto couples fall under the Family Law Act, and thus are dealt with through The Family Court and Federal Magistrates Court.

The Family Law Act places parental responsibility on both parents, regardless of whether they separate or enter new relationships. According to sections 61B to 61DB of the Family Law Act, parental responsibility refers to the duties, powers, responsibilities and authority which parents have in relation to their children.

Applying for parenting orders

The Court bases its decision on what is in the best interest of the child or children. More information about how the Court makes its decision can be found Section 60CA, Section 60CC and Section 64B of the Family Law Act .

Child Support

Under the Child Support (Assessment) Act, the primary carer of children from a de facto relationship can make a claim for child support from the other parent. The Child Support Agency is responsible for administering your child support arrangements , and assessing the amount of support which should be provided. The decision is based on each parent's income, the number of children and their living arrangements.

Time limits on de facto applications

An application for property adjustment or maintenance must be made within two years of separation (refer to s.44(5) of the Family Law Act).

If you are involved in a de facto relationship court proceedings, you should get a algel advice from a family lawyer .